The Home Office is facing fresh criticism over the Windrush scandal after it emerged victims are having to prove their case “beyond reasonable doubt” before being given compensation.
It is the same level of proof required to convict defendants in criminal courts across the UK. Immigration lawyer Jacqueline McKenzie told HuffPost UK that as compensation claims are civil cases, the burden of proof should be “on the balance of probabilities”.
The compensation scheme has been criticised over its slow progress in offering pay-outs to those wrongly told they no longer had a right to be in the UK. At least 83 victims with the right to live in the country have been deported.
By the end of March, 1,275 people had applied under the scheme. But to date, just 60 people have received compensation through the scheme, which was launched more than a year ago, with £362,996 paid out to them. Some estimates suggest the total fund could be between £200m and £500m.
At a Commons home affairs committee hearing on Wednesday, senior civil servants were forced to defend the “complex” scheme.
Underlining the slow pace at which the scheme is moving, chair Yvette Cooper said out of four cases raised with the Home Office by the committee over two years ago, two of the people had since died “before they can get any kind of payment or compensation or any redress for the injustices that they faced”.
In Home Office guidance, caseworkers are told they must be satisfied “beyond reasonable doubt” when judging the merits of five types of claim, including loss of access to employment and loss of access to education.
Cooper said it was “quite a high threshold” given that “this is a group of people who have already experienced considerable injustice, distress and trauma at the hands of the Home Office”.
When questioned, second permanent secretary Shona Dunn defended the position as the scheme is “funded from taxpayers’ money” and it is “inevitable a degree of evidence will be sought in order to support those payments”.
Labour MP Diane Abbott, who sits on the committee, raised the case of Joycelyn John who, despite living in the UK for more than 40 years, spent 18 months semi-destitute in Grenada before being allowed to return in 2018. The committee heard she has provided 75 pieces of evidence to the Home Office but has yet to receive compensation.
MPs were also told the average length of time it had taken to provide the 60 victims an offer of compensation was “under nine months”. The overall average amount of time people were having to wait to go through the process was “under eight months”, Dunn said.
Shadow justice secretary David Lammy said asking Windrush citizens for such proof “treats them like criminals when they are victims”.
He tweeted: “It is shameful @BorisJohnson and @pritipatel are setting the bar so high after their government treated this generation with such disdain.”
McKenzie, of McKenzie, Beute and Pope, described the move as “regrettable” and “inaccurate”.
“It’s regrettable in that it seems to be attaching a criminal standard of proof to people who are innocent victims of the outcomes of generations of discriminatory and erroneous decision making both in government and in the Home Office,” she told HuffPost UK.
“These are civil claims and the burden of proof on such claims is on the balance of probabilities. It is also shows a lack of understanding of the scheme in that the only aspect which requires incontrovertible evidence is for claims of actual loss of earnings rather than deemed loss.”
Martin Forde QC, the architect of the Windrush scheme, has said at several public meetings that a light touch approach to evidence should apply and that the scheme should be “fair” to “generous”, McKenzie added.
She added: “It’s worrying too in that the language used and the tenure of its tone suggests a continuation of the hostility which caused the Windrush scandal in the first place and I for one had hoped that lessons had been learnt but statements like these, two years after the scandal, are disturbing.”
Last month Priti Patel announced that the government will accept the recommendations of the review of the Windrush scandal in full. It followed a petition signed by 130,000 people.
Patrick Vernon, who created the petition and also led the campaign for Windrush Day to be recognised annually, told HuffPost UK the level of proof victims are expected to provide is “ridiculous”.
He said: “It further reinforces the basis that victims are at fault. It should be done on the principles of restorative justice, not criminal justice.
“Victims are being expected to produce the same standard of proof as loss adjustors.”
Patrick has since launched another petition calling for the compensation scheme to be made easier for victims to access. It has so far garnered 26,000 signatures, and calls for the government to consider taking the scheme off the Home Office and given to an independent organisation.
“We want to get this scheme removed from the Home Office and be run by an independent organisation,” he added.
He has also suggested that due to the delays in getting payouts, all victims should be automatically given £10,000 as “recognition of what the government has done to them”.
A Home Office spokesperson said: “We are determined to right the wrongs experienced by the Windrush generation.
“That is why we established the Windrush Compensation Scheme, which has been carefully designed with independent oversight so that it is as easy to use as possible. We will support people in collating evidence and there is an independent service to provide further assistance.
“The scheme made the first payment within four months of opening and has now offered claimants over £1m.”